Complete Story

11/19/2008

FCC Judge Throws NFL Network For A Loss

By: Ted Hearn, Multichannel News

Washington—The NFL Network was thrown for a loss Wednesday in its battle to obtain wider carriage from Comcast Corp., the largest U.S. cable operator with about 24 million subscribers.

An Administrative Law Judge at the Federal Communications Commission made two procedural rulings that will likely mean Comcast can keep the NFL Network from automatically reaching the vast majority of its customers for the rest of the current pro football season.

The ALJ's ruling also helped three other cable operators caught up in a total of six program carriage disputes at the FCC.

The other likely loser in the ALJ's ruling was FCC chairman Kevin Martin, who has been warring with Comcast for nearly four years. Martin, certain to be replaced by President-elect Obama in January if he hasn't already resigned, had put the Comcast-NFL Network dispute on the fast track, hoping to be in charge when the final votes were cast.

In October, the FCC Media Bureau ordered ALJ Arthur I. Steinberg to wrap up his consideration of the Comcast-NFL Network case by Dec. 9, a 60-day deadline. He refused, saying the deadline was unrealistic because the Comcast-NFL Network matter was just one of six program carriage controversies sent to him by the Media Bureau.

"The 60-day timeframe set forth in the [Media Bureau order] cannot be achieved. This is an extremely complex proceeding involving six separate program carriage complaints, three complainants, and four [cable operators]," Steinberg wrote in a five-page opinion to be released Thursday.

He added, "Each of these six cases presents its own peculiar facts and, as an examination of the [Media Bureau order] will reveal, each factual situation appears to be unique and intricate, and the complaints have been vigorously contested by the [cable operators]."

The NFL Network, owned by the league, is seen by about 2 million Comcast subscribers who generally pay extra to view the channel. The network aired its first of eight regular season games on Nov. 6. The NFL has gone to court and to the FCC to force Comcast to deliver the channel to the 70% of subscribers who have digital service.

Steinberg's ruling also tossed out the Media Bureau's conclusion that Comcast had discriminated against the NFL Network, a finding that NFL Commissioner Roger Goodell (pictured) had been trumpeting in letters to Capitol Hill and in editorials circulated to media outlets. Steinberg decided to hear the entire case anew, disregarding the Martin Media Bureau's finding of discrimination.

"That is," he wrote, “the ‘facts’ and ‘conclusions’ recited in the [Media Bureau order] will not be considered as binding on the presiding judge."

A Comcast spokeswoman declined comment.

In a statement late Wednesday, FCC spokesman Robert Kenny said, "The Media Bureau has found that the initial standard of discrimination has been met and we hope that the judge resolves this matter in favor of consumers as soon as possible."

The NFL Network released a statement that sidestepped Steinberg's refusal to rule within 60 days, even though the channel's lawyer stressed the importance of a speedy decision during an Oct. 27 hearing.

"NFL Network is pleased that the [ALJ] has rejected Comcast's attempts to delay this proceeding through a needless appeal to the full [FCC]—an appeal that sought to challenge the clear legal standards that support the NFL Network's complaint. We're particularly glad to note that the ALJ's order did not accept Comcast's position that it was exempt from the statutory prohibition against discrimination because of its contract with the NFL Network," the NFL Network's statement said.

Steinberg is also hearing similar cases involving WealthTV against Time Warner Cable, Bright House Networks, Cox Communications, and Comcast; and Mid-Atlantic Sports Network (MASN) against Comcast. MASN is the pay-TV home of the Baltimore Orioles and the Washington Nationals baseball clubs.

Under his ruling, those cases will also start from the beginning and likely won't be resolved for many months. Recent ALJ rulings have taken at least seven months to complete.

"MASN welcomes the [ALJ's] decision to move expeditiously to trial,” said MASN spokesman Todd Webster. “The cable companies’ strategy of delay and obstruction would have further harmed the very consumers who are already being denied access to our independent, local programming.”

“We are confident that on the merits and on the evidence, MASN will once again prevail and we look forward to presenting our case," he added.